United States v. Robinson

United
States Attorney's Office for the Eastern District of New
York, Allen Lee Bode, Assistant United States Attorney

Law
Office of Kevin J. Keating Attorney for the Defendant, Kevin
James Keating, Esq., of Counsel

MEMORANDUM OF DECISION AND ORDER

ARTHUR
D. SPATT, United States District Judge

On
March 15, 2017, the Defendant Tyrone Robinson (the
“Defendant”) was charged in a superseding
indictment with thirty-two counts relating to nine gunpoint
robberies and attempted robberies that occurred in Nassau
County, as well as accompanying conspiracy and firearm
charges.

Presently
before the Court are several motions by the Defendant: to
dismiss the alleged violations of 18 U.S.C. § 924(c) for
failure to state a claim; to suppress statements made by the
Defendant during a videotaped interrogation; to sever or
bifurcate the counts alleging violation of 18 U.S.C. §
922(g) from the other counts; to compel election between
multiplicitous conspiracy counts; to suppress a police
officer identification; to suppress evidence recovered from
the Defendant's residence by NYS parole officers pursuant
to a parole arrest warrant on June 10, 2016; and to suppress
all evidence recovered pursuant to the execution of a search
warrant on July 8, 2016.

For the
following reasons, the Court grants the Defendant's
motion to bifurcate the felon-in-possession counts from the
other counts; as well as his motion for a suppression hearing
regarding the seizure of his cellular phone during the
execution of the parole arrest warrant on June 10, 2016. The
Defendant's remaining motions are denied.

I.
BACKGROUND

A.
Procedural Background

On
October 9, 2016, the Government filed a complaint against the
Defendant charging the Defendant with alleged violations of
18 U.S.C. § 1951(a), Hobbs Act robbery, and 18 U.S.C.
§ 924(c), use of a firearm in furtherance of a crime of
violence.

On
January 11, 2017, the Government filed a 22-count indictment
against the Defendant.

On May
8, 2017, the Defendant filed the instant motions, and he
supplemented his motions on September 22, 2017.

B.
The Relevant Facts

The
indictment alleges that the Defendant was involved in
numerous home invasions, and that he possessed a firearm on a
number of occasions. As not all facts are relevant to the
instant motions, the Court will state the relevant facts when
they are necessary to the determination of the specific
motion.

II.
DISCUSSION

A.
As to the Defendant's Motion to Dismiss the Alleged
Violations of 18 U.S.C. § 924(c)

The
Defendant contends that all alleged violations of 18 U.S.C.
§924(c) (“Section 924(c)”) must be dismissed
because Hobbs Act robbery does not qualify as a crime of
violence under Section 924(c). The Court finds that the
Second Circuit has explicitly ruled that Hobbs Act robbery is
a crime of violence as defined in Section 924(c), and that
the Court is therefore constrained to follow that precedent.

Section
924(c)(1)(A) provides, in pertinent part:

[A]ny person who, during and in relation to any crime of
violence . . . for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime
of violence . . .

(i) be sentenced to a term of imprisonment of not less than 5
years;

(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.

18 U.S.C. § 924(c). A “crime of violence” is
defined as:

[A]n offense that is a felony and--

(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another, or

(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.

Id. at § 924(c)(3)(A)-(B).

The
superseding indictment indicates that the crime(s) of
violence which form the basis of the Defendant's alleged
Section 924(c) violations are the numerous robberies and
attempted robberies committed in violation of 18 U.S.C.
§ 1951(a).

Section
1951(a) states that:

Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so
to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do
anything in violation of this section shall be fined under
this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). The same section defines robbery
as:

[T]he unlawful taking or obtaining of personal property from
the person or in the presence of another, against his will,
by means of actual or threatened force, or violence, or fear
of injury, immediate or future, to his person or property, or
property in his custody or possession, or the person or
property of a relative or member of his family or of anyone
in his company at the time of the taking or obtaining . . . .

Id. at § 1951(b).

As the
Defendant admits, the Second Circuit ruled in United
States v. Hill, 832 F.3d 135 (2d Cir. 2016) that
“Hobbs Act robbery ‘has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, '” id.
at 144 (quoting 18 U.S.C. § 924(c)(3)(A), and therefore
qualifies as a crime of violence under that statute. The
Circuit further stated that “[e]ven if Hobbs Act
robbery did not qualify as a crime of violence pursuant to
§ 924(c)(3)(A), such a robbery unequivocally qualifies
as a crime of violence pursuant to § 924(c)(3)(B)
because it, ‘by its nature, involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the
offense.'” Id. at 145 (quoting 18 U.S.C.
§ 924(c)(3)(B). The Hill Court explicitly
rejected many of the arguments raised by the Defendant here,
including that the “substantial risk of force”
clause contained in Section 924(c)(3)(B) is void for
vagueness in light of Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (“Johnson
II”) (2015). In Johnson II, the Supreme
Court found that the residual clause of the Armed Career
Criminal Act violated the Constitution's guarantees of
due process by being unconstitutionally vague.

As to
the defendant's argument in Hill that Section
924(c)(3)(B) should also be held unconstitutionally vague,
the Second Circuit stated that:

[T]he Supreme Court's explanation for its conclusion in
Johnson II renders that case inapplicable to the
risk-of-force clause at issue here. Section 924(c)(3)(B) does
not involve the double-layered uncertainty present in
Johnson II. . . . Assessing whether a felony, by its
nature, poses a substantial risk that “physical force
against the person or property of another may be used in the
course of committing the offense, ” §
924(c)(3)(B), however, is a far narrower and simpler
undertaking than divining whether a felony, not being one of
four enumerated, but disparate crimes, “otherwise
involves conduct that presents a serious potential risk of
physical injury to another, ” § 924(e)(2)(B)(ii).

This
Court is bound by the Second Circuit's decision in
Hill, unless and until the Second Circuit or the
United States Supreme Court overrules it.

Therefore,
the Court finds that Hobbs Act robbery constitutes a crime of
violence under Sections 924(c)(3)(A) and 924(c)(3)(B).
Accordingly, the Defendant's motion to dismiss those
counts is denied.

B.
As to the Defendant's Motion to Suppress Videotaped
Statements

The
Defendant moves to suppress videotaped statements that he
made to an agent of the Bureau of Alcohol, Tobacco, and
Firearms (the “ATF”), because he argues that his
Miranda waiver was not knowing, intelligent, and voluntary.
The Government states that that it “does not intend to
introduce [the Defendant's] statements . . . in its
case-in-chief, ” but that it “reserve[s] the
right to use the statements to impeach [the Defendant] if he
takes the witness stand.” (Gov't Omnibus Resp. to
Def.'s Mots. (ECF No. 69) (“Gov't Opp.”)
at 10).

Accordingly,
the Defendant's motion to suppress the videotaped
statements is denied as moot. See United States v.
Mouzon, No. 16 CR 284 (CM), 2016 WL 7188150, at *1
(S.D.N.Y. Dec. 2, 2016) (“[T]he Government says that it
‘does not intend to use the defendant's statements
in its case-in-chief.' Accordingly, defendant's
motion to suppress his statements is moot . . . .”);
United States v. Jackson, 548 F.Supp.2d 24, 26
(W.D.N.Y. 2008) (same).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;C.
As to the Defendant's Motion to Sever or Bifurcate the
...

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